could recover under the provisions of the Workmen's Compensation Act (Hurd's Rev. St. 1915-16, c. 48, §§ 126-152h) which was in force at the time of the accident.

The evidence tends to show that structural ironworkers are a part of the regular force of employees of various railroads; that some of these ironworkers regularly employed by plaintiff in error started to do this work, when a change was made by calling in the four workmen as above stated. The question as to whether these new men were union or nonunion is, as suggested by counsel, not material; but the facts as to the change of the workmen during the construction of this runway are only important in their bearing on the character of the contract entered into between the railroad company and Christ Anderson. We judge from the evidence in the record that it is not disputed that railroads now and then call in structural ironworkers from the union headquarters to do work of this character. There is proof in the record, however, that plaintiff in error had never before called Anderson or his fellow employees to do this character of work for it. The evidence shows that Anderson had been an experienced structural ironworker for many years, and, so far as the record shows, this is the only employment he ever had from the plaintiff in error company. The particular job of doing structural ironwork on this runway lasted three or four days after the four union men came to do the work. Apparently two of the four quit before the job was completed and were paid for what work they had done, and other union men were sent from union headquarters to take their places.

[1, 2] Counsel for defendant in error argues that there is nothing to show that Anderson may not have begun a work which was to give him permanent employment with the railroad company as a structural ironworker. There is nothing in this record that in any way tends to uphold this argument. The evidence all justifies the conclusion that he was only employed for that particular job, as were the other three men who came at the same time. The work of building this runway was a part of the regular work for the conduct of the railroad's business. The putting on of these union ironworkers for this temporary work only bears on the character of the contract of employment. The character of the work was fixed by the fact that it was a part of the railroad work. The character of the contract of employment, as to whether it was casual or not, was fixed by the contract of hiring-that is, the contract could have been of such a nature that Anderson would have been a regular employee of the railroad as a structural ironworker, or it could have been of such a nature that he was only a casual employee for this particular job-and the question to be determined here is which kind of contract was, in fact, made. The fact that the man making the contract is union or non-union is wholly incidental to the question of what the real contract was. The burden of proof is upon the claimant to prove the employment and injury, but the burden is on the plaintiff in error to prove that the employment is but casual. Peoria Terminal Co. v. Industrial Board, 279 III. 352, 16 N. E. 651; Victor Chemical Works v. Industrial Board, 274 Ill. 11, 113 N. E. 173, Ann. Cas. 1918B, 627.

This court has had occasion several times to discuss the meaning of the word "casual,' as used in the Workmen's Compensation Act with reference to the character of the employment. In Baer's Express Co. v. Industrial Board, 282 Ill. 44, 118 N. E. 412, a workman had been employed prior to the accident at irregular times by the express company. He had been promised regular employment and reported to work at the stables Monday morning about 6 o'clock. Three hours later he was injured in the express company's barn. The opinion says (282 Ill. 49, 118 N. E. 414):

"We are of the opinion that, giving the testimony on behalf of the claimant all the weight to which it is entitled, it is insufficient to show that there was such an employment as to render plaintiff in error liable under

the Workmens' Compenation Act. It cannot be seriously contended but that up until the morning of the day on which he was injured the employment of the deceased by plaintiff in error was but casual. ** The only conclusion that can be drawn from it is that the relationship between deceased and plaintiff in error had remained unchanged and that he was still but a casual or occasional employee.”

In McLaughlin v. Industrial Board, 281 Ill. 100, 117 N. E. 819, a workman was injured while blasting stumps in connection with work on a highway. The opinion says (281 Ill. 108, 117 N. E. 822):

"We are of the opinion, however, that his employment was but a casual employment within the meaning of the statute. From the evidence it appears that the work of dynamiting or blasting stumps had been going on but a few hours at most, in the morning Hiler was killed, and that work necessarily could only continue for a very short time, and was to end with the blowing out of the stumps on that particular piece of road. * * * The employment of Hiler in this case * * was not a regular or stable employment within the meaning of the statute but was merely a casual employment."

In re Gaynor, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363, a waiter, employed by a caterer to serve at a banquet, was injured while preparing for the banquet. He had never been employed before that time by that caterer. The custom of the catering business was that such banquets were served by waiters secured for each particular occasion. The Massachusetts Supreme Court said in its opinion:

*

"It would be difficulty to conceive of employment more nearly casual in every respect than was that of the employee in the case at bar. The engagement was for a single day and for one occasion only. * The relation between the waiter and the caterer had no connection of any sort with any events in the past. Each was entirely free to make other arrangements for the future, untrammeled by any express or implied expectations of further employment. The employment was not periodic and regular. ✶✶✶ It was in the course of the regular business of the employer. But under our act that is an immaterial circumstance in view of the other fact that the employment was 'but casual.' The conclusion seems irresistible that the employment of the deceased was 'but casual' within the meaning of those words in our act."

The Massachusetts act under which this opinion was construed is identical with the Illinois act so far as it relates to casual employment.

In re Cheever, 219 Mass. 244, 106 N. E. 861, was a case brought under the Workmen's Compensation Act of Massachusetts, (St. 1911, c. 751, as amended by St. 1912, c. 571). One Pierce owned a coal yard and conducted a retail coal business. At various times in 1911, 1912, and 1913 he employed Cheevers to deliver coal with Cheevers' wagon at $5 a day for himself and team, he being hired for this general work for no fixed duration of time and for no specific job. The Massachusetts Supreme Court in discussing this accident said:

"The scheme created by the Workmen's Compensation Act is a scheme of insurance in which the premiums to be paid by the employer are based upon the wages paid by him to his employees. It may have been thought impracticable to work out a scheme of insurance if persons who are only occasionally employed are to be included among those insured."

And the court held Cheevers' employment in the case was casual and therefore that he could not recover.

In Blood v. Industrial Accident Com., 30 Cal. App. 274, 157 Pac. 1140, a house painter was employed to apply two coats of paint to a certain building; the employer furnishing the material. The employment was not for any definite period of time, but the evidence showed that it would

Vol. III-Comp. 2.

reasonably have been done within two weeks. During the first day the employee was accidentally injured. The California court said:

"It is noted that the ordinary signification of the word 'casual,' as shown by the lexicographers, is something which comes without regularity, and is occasional and incidental; that its meaning may be more clearly understood by referring to its antonyms, which are 'regular,' 'systematic,' 'periodic,' and 'certain.' Tested by this distinction, the contract of employment of Heck by the petitioner to paint his house was casual. It was a mere occasional and incidental contract, not constituting or connected with any regular, systematic, periodic, or certain business."

[3] While it is true, as stated by this court in Aurora Brewing Co. v. Industrial Board, 277 Ill. 142, on page 145, 115 N. E. 207, on page 208, that "each case * * * must be decided quite largely upon its special facts," cases may be valuable in the principles of law stated and in showing how those principles are applied to a certain state of facts. The Legislature certainly intended, when the act here in question was passed, to give some meaning to "casual," and we assume from a reading of the statute that it intended to give the ordinary, common meaning; that is, workmen are engaged in casual employment when they are employed only "occasionally," "irregularly" or "incidentally," as distinguishing them from those employed regularly and continuously. While it is true that the Legislature, since this accident occurred, has amended the Workmen's Compensation Act with reference to casual employment, doubtless because of the construction given by this court to the statute here under consideration in Aurora Brewing Co. v. Industrial Board, supra, still we must construe the statute in accordance with its spirit and intent and as worded when this accident occurred. In view of the reasoning of this court in the cases already cited and the other decisions mentioned, in our judgment it must be held that Anderson's employment was but casual, and that therefore there can be no recovery under the Workmen's Compensation Act.

The Industrial Board erred in holding that recovery could be had under the Workmen's Compensation Act for the injury to the deceased, as did also the circuit court. The judgment of the circuit court is therefore reversed.

Judgment reversed.

SUPREME COURT OF ILLINOIS.

N. K. FAIRBANK CO.

ข.

INDUSTRIAL COMMISSION OF ILLINOIS et al. (No. 11830.)*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT "OUT OF AND IN THE COURSE OF HIS EMPLOYMENT."

It being a custom that where deceased, sent to procure sample of fat for his employer, could not finish his inspection and return to plant of employer before 6 p. m., he would bring samples the following morning, injuries received by deceased while going home after 7:15 p m., at which time he left the plant of another company after procuring samples, did * Decision rendered, Oct. 21, 1918. 120 N. E. Rep. 457.

not arise "out of and in the course of his employment," within Workmen's Compensation Act, whether or not he was carrying samples when injured. (For other cases, see Master and Servant, Dec. Dig. § 375[2].)

2. MASTER AND SERVAN T-WORKMEN'S COMPENSATION ACT "COURSE OF THE EMPLOYMENT."

An injury occurs in the "course of the employment," within Workmen's Compensation Act, when it occurs within the period of the employment, at a place where the employee may reasonably be, and while he is rasonably fulfilling the duties of his employment, or is engaged in doing something incidental to it.

(For other cases, see Master and Servant, Dec. Dig. § 371.)

(For other definitions, see Words and Phrases, First and Second Series, Course of Employment.)

Error to Circuit Court, Cook County; Oscar M. Torrison, Judge. Proceedings before the Industrial Commission by Rose A. McGuire, administratrix, for compensation for the death of Michael McGuire, employee. To review a judgment of the circuit court, confirming a decision and award of the Industrial Commission, the N. K. Fairbank Company, employer, brings error. Reversed and remanded.

Brode B. Davis, of Chicago, for plaintiff in erorr.

Ditchburne & Westberg, of Chicago, for defendant in error.

COOKE, J. This is a writ of error to review the judgment of the circuit court of Cook county confirming the decision and award of the Industrial Board. Claim was made by Rose McGuire, as administratrix, for compensation for the death of Michael McGuire, which resulted from an injury received by him on September 21, 1915, and which it is alleged arose out of and in the course of his employment with the N. K. Fairbank Company, plaintiff in error.

[1] At the time of his death the deceased was in the employ of the plaintiff in error as weigher and receiver in its plant at Wentworth avenue and Eighteenth street, in the city of Chicago. In the performance of his duties he was occasionally required to visit the plants of others than plaintiff in error for the purpose of inspecting fats offered for sale to the plaintiff in error and obtaining samples of the same. The factory of plaintiff in error, where the deceased performed his work as weigher and receiver, closed at 6 o'clock p. m. On the day on which he was injured the deceased was sent to the plant of Darling & Co., in Chicago, to procure samples of fat. It was his custom on such occasions, if he could obtain the samples in time, to return to the plant of the plaintiff in error before 6 oclock p. m.; but, if he could not finish his inspection and obtain the samples in time to return to the plant before closing time, he would bring the samples to the plant of plaintiff in error the following morning. On the day of the accident the deceased completed his inspection of the samples and left the plant of Darling & Co. about 7:15 or 7:20 o'clock p. m., carrying a small pail containing tallow with him. After leaving the plant of Darling & Co. he walked about two blocks to the corner of Forty-Second street and Ashland avenue, where he was struck and killed by a street car about 7:40 or 7:45 o'clock p. m. He was seen by several witnesses between the time he left the plant of Darling & Co. and the time when he was struck by the street car, and an effort was made on the part of plaintiff in error to show that at the time he was struck by the street car he did not have in his possession the pail of tallow which he took with him when he left the plant of Darling & Co. In our view of the case it is immaterial whether or not he had left the pail of tallow with some friend in that locality until he should return

for it on the following morning, or whether he still had it in his possession at the time he was killed. The deceased had finished his work for the day and was on his way to his home at the time this accident occurred, and the sole question for our determination is whether the accident arose out of and in the course of his employment.

The Workmen's Compensation Act (Hurd's Rev. St. 1917, c. 48, §§ 126-152i) is designed to protect workmen and compensate them for injuries received while performing any duty necessary to be performed in the course of their employment or incident to it. It was not intended by this act that the employer who comes within the provisions of the act shall be the insurer of the safety of his employee at all times during the period of the employment. The employer is liable for compensation only for an injury which occurs to the employee while performing some act for the employer in the course of his employment or incidental to it. When work for the day has ended, and the employee has left the premises of his employer to go to his home, the liability of the employer ceases, unless after leaving the plant of the employer the employee is incidentally performing some act for the employer under his contract of employment. It is true, in Friebel v. Chicago City Railway Co., 280 Ill. 76, 117 N. E. 467, we said that, where one is injured while merely going to or returning from his employment, the injury is considered to have occurred within the line of the employment. This language was not necessary to a decision of that case and should be modified. There may be circumstances under which an employee, in going to and returning from the place of his employment, would be held to be in the line of his employment; but those cases would be governed and controlled by their own particular circumstances. In this case there is no circumstance to show that after the deceased had left the plant of Darling & Co. he was performing any mission for his employer. He had completed his work for the day. It is true that he had in his possession a small pail of tallow which it was necessary for him to deliver at the plant of plaintiff in error the next morning; but if he still retained possession of this pail at the time he was injured he did so for his own convenience, and that fact did not contribute in any way to his injury.

[2] An injury occurs in the course of the employment, within the meaning of the Workmen's Compensation Act, when it occurs within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of this employment, or is engaged in doing something incidental to it. Dietzen Co. v. Industrial Board, 279 Ill. 11, 116 N. E. 684, Ann. Cas. 1918B, 764. At the time the deceased was injured his duties for the day had ceased and he was on his way to his home. He was not doing anything incidental to his employment, and the applicant is not entitled to compensation for his death.

It was also contended that the injury to the deceased was the result of a risk to which the deceased was exposed equally with the general public. In the view we have taken it is not necessary to determine that question.

The circuit court erred in not setting aside the decision and award of the Industrial Board.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.